Truong v. Nguyen

• Decision Date: 05 November 2007
• Docket Number: No. H029974.,H029974.
• Citation: 156 Cal.App.4th 865,67 Cal.Rptr.3d 675
• Parties: Long TRUONG, et al., Plaintiffs and Appellants, v. Cu Van NGUYEN, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

67 Cal.Rptr.3d 675

156 Cal.App.4th 865

Long TRUONG, et al., Plaintiffs and Appellants, v. Cu Van NGUYEN, et al., Defendants and Respondents.

No. H029974.

Court of Appeal, Sixth District.

November 5, 2007.

James J. Der, Jr., Milpitas, for Appellant.

Gordon J. Finwall, Finwall Law Offices, San Jose, for Respondents.

McADAMS, J.

In this appeal, we address the question whether the doctrine of primary assumption of risk bars a claim for the wrongful death of a passenger who tragically died as a result of a collision between the personal watercraft she was riding and another similar watercraft owned and operated-by the defendants. We are further invited to distinguish existing authority applying the doctrine to the use: of personal watercraft by differentiating between "casual" use of such watercraft and "extreme" use. We conclude the doctrine applies to the claims of passengers on personal watercraft. We also decline appellants' invitation to distinguish between causal and extreme use of the watercraft and to draw distinctions based on the use or action at the specific moment of injury without considering the general nature of the activity in which the participants are engaged and the relationship of the plaintiff and the defendant to the activity.

INTRODUCTION

Appellants Long Truong and Yen Truong (hereafter jointly Plaintiffs), parents of Decedent Rachael Truong (Rachael), sued respondents Cu Van Nguyen (Cu Van) and Chuong Nguyen (Chuong; hereafter jointly Defendants) and Anthony Nguyen (Anthony)¹ for wrongful death after Rachael was killed in a collision between two personal watercraft on Coyote Lake. Plaintiffs allege that Cu Van was negligent and negligent per se in the operation of the personal watercraft, that Chuong negligently entrusted the personal watercraft to Cu Van, and that their negligence caused Rachael's death.

The trial court granted Defendants' motion for summary judgment. The court held that Plaintiffs' wrongful death, survivorship, negligence, and negligence per se claims against Cu Van were barred by the primary assumption of risk doctrine and that Plaintiffs' survivorship and negligent entrustment claims against Chuong were barred because there was no evidence of negligent entrustment.

Plaintiffs appeal, contending that the trial court erred in granting summary judgment because the primary assumption of risk doctrine does not apply in this case because Rachael was a passenger on the personal watercraft and was not engaged in an active sporting activity at the time of the accident. Plaintiffs urge us to distinguish between "ordinary" or "casual" use of the personal watercraft and "extreme" use such as competitions or racing and argue that the doctrine should not apply to the casual use in this case. They contend Anthony's declaration that there are no skills required to be a passenger on a sitdown personal watercraft raises a triable issue sufficient to defeat summary judgment. We conclude the court properly granted summary judgment of the claims against Cu Van because the doctrine of primary assumption of risk applies and is a complete defense. We also affirm the trial court's grant of summary judgment of the negligent entrustment claim against Chuong.

Facts

This is a wrongful death action arising out of the collision of two personal water craft on Coyote Lake in Gilroy, California. The operation of personal watercraft, along with other water activities, is permitted on the lake. On the day of the accident, the lake had posted a 35 mph speed limit and a counterclockwise traffic pattern. There was a single boat launch ramp on the west side of the lake. At the time of the accident, there were 30 to 35 vessels on the water, which was considered to be moderate activity. The weather was fair and visibility was good. There was a moderate wind, which made the lake a bit choppy.

On the afternoon of June 1, 2003, Anthony, Rachael and friends gathered at a Coyote Lake picnic area. Anthony owned a 1995 Polaris SLX personal watercraft (Polaris), which can carry a driver and one passenger,² both in seated positions. Anthony and Rachael went for a ride on the Polaris. At the time of the incident, Anthony was operating the Polaris, and Rachael was sitting in front of him, as a passenger.

That same afternoon, Cu Van, Chuong, their family members and their friends were at Coyote Lake to operate personal watercraft. Chuong, the son of Cu Van, owned two personal watercraft, including the 2003 Yamaha WaveRunner GP1300R (Yamaha) that was involved in the accident. The Yamaha, like the Polaris, can carry two people (a driver and a passenger), both in seated positions. The Yamaha driver operates it from a sitting position and controls speed through a trigger throttle lever on the right handle bar. The Yamaha has a "visibility spout" that generates a 10-foot spray of water to make it more visible to others in the area of operation.

Chuong taught Cu Van how to operate personal watercraft in 2001 and Cu Van had experience operating such vessels prior to the incident. On the date of the accident, Cu Van was not aware of any mechanical defects with the Yamaha; both the speedometer and the visibility spout were working. Cu Van did not ingest any alcohol or drugs and did not have any health problems on the date of the incident.

Cu Van felt very comfortable operating both of Chuong's personal watercraft on June 1, 2003. He went out on the personal watercraft four or five times that day. Each session lasted no longer than 15 minutes since operating personal watercraft requires physical exertion and is tiring. At the time of the accident, Cu Van was operating the Yamaha and was alone on the craft.

Around 4 p.m., the Yamaha and the Polaris collided near the middle of Coyote Lake, resulting in the death of Rachael, along with injury to Anthony and property damage to both watercraft. At the time of the collision, Cu Van was traveling about 25 mph and following the posted traffic pattern; Anthony and Rachael were traveling five to 10 miles per hour. Anthony followed the traffic pattern around the lake, then cut across the lake to circle back to the point where he had started. Cu Van claims Anthony violated the posted traffic pattern. According to the ranger's report, Rachael was injured when the Yamaha rode up over the starboard stern of the Polaris and impacted her torso, forcing her into the steering column.

Procedural History

I. Pleadings

The operative pleading is Plaintiffs' first amended complaint (complaint). Plaintiffs named Cu Van, Chuong, and Anthony as defendants.³ The complaint contains causes of action for wrongful death on a negligence theory against Cu Van, survivorship⁴ against all three defendants, negligence and negligence per⁵ se against Cu Van, negligence per se against Anthony, and negligent entrustment against Chuong.

II. Motion for Summary Judgment

On July 29, 2005, Defendants moved for summary judgment of all the claims against them. Defendants' motion was based on the affirmative defense of primary assumption of risk. Citing Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 2 Cal.Rptr.3d 883 (Whelihan) [primary assumption of the risk applies to use of jetskis] and Pearl v. Ferro (2004) 119 Cal. App.4th 60, 13 Cal.Rptr.3d..885 (Peart) [primary assumption of the risk applies to cases involving personal watercraft], Defendants asserted that the doctrine of primary assumption of risk applies to the recreational activity of riding personal watercraft and is a complete bar to the causes of action in the Plaintiffs' complaint. They argued that the risk of collision with another personal watercraft is inherent in the activity of using personal watercraft and that Plaintiffs' decedent assumed that risk. Moreover, Defendants claimed that there were no triable issues of material fact that their conduct was intentional or so reckless as to be outside the range of ordinary activity involved in operating a personal watercraft, and that they owed no duty to protect Rachael from risks inherent in the activity. Defendants argued that the Harbors and Navigations Code section and the regulations Plaintiffs relied on as the basis for their negligence per se claims did not trump the common law primary assumption of the risk doctrine. Finally, Defendants contended that in addition to the "insurmountable hurdle of Cu Van ... having no duty" to Rachael, there was no evidence Chuong negligently entrusted the Yamaha to Cu Van. Defendants did not move for summary adjudication in the alternative.

Plaintiffs opposed the motion. Citing Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 801, 112 Cal.Rptr.2d 217 (Shannon), which held that the primary assumption of the risk doctrine does not apply "where a driver of a boat takes passengers out on [the] boat for a simple ride around a lake," Plaintiffs argued that the primary assumption of risk doctrine does not apply to this case because Rachael was not engaged in a covered sporting activity since she was merely a passenger on the Polaris and Anthony had taken her out for a simple ride around the lake. Plaintiffs also argued that Defendants were not engaged in an activity covered by the doctrine. Plaintiffs stated that, although a personal watercraft may be used for sporting purposes, the situation here was distinguishable because the watercraft were not being used for sport, but instead for casual ride around the lake. They argued that Whelihan and Peart were distinguishable because the parties in both cases operated their watercraft at relatively high speeds and engaged in maneuvers and did not just use the watercraft as a means of transportation, as was the case here. They asserted that, because of this distinction in use, Defendants breached their ordinary duty of care to Rachael, were negligent, and are liable for her death.

Plaintiffs did not address Defendants' arguments regarding the negligence per se and negligent entrustment causes of action on the merits....